BILL ANALYSIS �
AB 2494
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2494 (Cooley)
As Amended August 19, 2014
Majority vote
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|ASSEMBLY: |78-0 |(May 28, 2014) |SENATE: |35-0 |(August 25, |
| | | | | |2014) |
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Original Committee Reference: JUD.
SUMMARY : Provides an additional tool for sanctions of bad faith
actions and tactics. Specifically, this bill :
1)Provides that a trial court may order a party, the party's
attorney, or both to pay the reasonable expenses, including
attorney's fees, incurred by another party as a result of
bad-faith actions or tactics that are frivolous or solely
intended to cause unnecessary delay, as defined.
2)Provides that expenses pursuant to this bill shall not be
imposed except on notice contained in a party's moving or
responding papers or, on the court's own motion, after notice
and opportunity to be heard. An order imposing expenses shall
be in writing and shall recite in detail the conduct or
circumstances justifying the order.
3)Provides that in addition to any award pursuant to this bill
for conduct described in of Code of Civil Procedure (CCP)
Section 128.5(a), the court may assess punitive damages
against the plaintiff on a determination by the court that the
plaintiff's action was an action maintained by a person
convicted of a felony against the person's victim, or the
victim's heirs, relatives, estate, or personal representative,
for injuries arising from the acts for which the person was
convicted of a felony, and that the plaintiff is guilty of
fraud, oppression, or malice in maintaining the action.
4)Provides that any sanction imposed pursuant to this bill shall
be imposed consistently with the standards, conditions and
procedures set forth in subdivisions (c), (d), and (h) of CCP
Section 128.7.
5)Provides that the liability imposed by this bill is in
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addition to any other liability imposed by law for acts or
omissions within the purview of this bill.
6)Specifies that the foregoing shall not apply to disclosures
and discovery requests, responses, objections, and motions.
7)Provides that a party who files a motion pursuant to CCP
Section 128.5 shall, promptly upon filing, transmit to the
California Research Bureau of the California State Library
(CRB), by email, a copy of the endorsed, filed caption page of
the motion or opposition, a copy of any related notice of
appeal or petition for a writ, and a conformed copy of any
order issued pursuant to this section, including any order
granting or denying the motion, as well as a notice of any
corresponding motion under CCP Section 128.7.
8)Provides that this bill shall remain in effect only until
January 1, 2018, and as of that date is repealed, unless a
later enacted statute, that is enacted before January 1, 2018,
deletes or extends that date.
9)Provides that on or before January 1, 2017, the CRB shall
submit a report to the Legislature examining the impact and
effect of this act, as specified and shall maintain a public
record of information transmitted pursuant to it for at least
three years, or until this act is repealed, whichever occurs
first and may store the information on microfilm or other
appropriate electronic media.
The Senate amendments add the CRB notification requirement,
shift the required report to the Legislature from the Judicial
Council to the CRB, shorten the date for the report, and delete
the condition that the bill be effective upon receipt of private
funding.
FISCAL EFFECT : According to the Senate Appropriations
Committee:
1)Unknown, potentially significant costs (General Fund) to the
CRB to collect and maintain the documents as public records
for at least three years. Costs would be dependent on the
volume of documents sent via facsimile or electronic mail and
level of usage of this process.
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2)One-time costs of about $25,000 to $30,000 (General Fund) for
the CRB to prepare and submit the legislative report.
COMMENTS : The author explains the reason for the bill as
follows:
Existing law until 1995 provided that litigants
subject to bad-faith and unmeritorious tactics could
seek sanctions in the form of attorney's fees (CCP
128.5). Many thought the bar to use this provision
was too high because the statute had been interpreted
to require both an objective standard that the act was
without merit and a subjective bad-faith motive, which
was difficult to prove. Thus, in 1995 CCP 128.7 was
enacted. This also brought California into alignment
with federal law (FRCP's [Federal Rule of Civil
Procedure] Rule 11) and imposed a lower threshold for
sanctions against an attorney by only requiring the
attorney's conduct be objectively unreasonable.
Unfortunately, it stopped the applicability of CCP
128.5 as applied to bad-faith tactics outside the
scope of filing frivolous pleadings.
Unfortunately, bad-faith disobedience and tactics by
either side are needlessly employed in litigation. It
can result in clogging our courts and wasting precious
judicial resources. Courts routinely give litigants
the benefit of the doubt, but they have lost an
important tool used to ensure bad faith actions that
can materially harm the other party or the fairness of
a trial are discouraged. Under existing law a court
can compel obedience with a court order, but
financially the most a court can do if a party
violates one is find them in contempt with penalty of
up to $1500. Moreover, if a case ends in a mistrial
or in the release of protected documents it is
difficult to undo the waste of judicial resources or
harm done to the litigant who was not at fault.
Similarly, supporters note that the effect of the bill would be
to allow for sanctions for violation of a court order. There is
no opposition on file.
This measure makes clear that it is intended to be read in
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harmony with the salutary cognate provisions of CCP Section
128.7.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0005452